Communalism

Delhi HC: '1984 Massacre a Crime Against Humanity, India Must Plug Legal Loopholes'

"Common to the instances of mass crimes are the targeting of minorities and the attacks spearheaded by the dominant political actors facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment."

The following are excerpts, lightly edited for style, from the judgment of Justice S. Muralidhar and Justice Vinod Goel of the Delhi high court in the Sajjan Kumar case. The court convicted the senior Congress leader for his involvement in the November 1984 mass killing of Sikhs but drew attention to the need for India to address shortcomings in its legal system that make it difficult to prosecute mass crimes that invariably occur with political patronage and official support.

The full text of the judgment is available on the Delhi high court website.

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In the summer of 1947, during partition, this country witnessed horrific mass crimes where several lakhs of civilians, including Sikhs, Muslims and Hindus were massacred.

A young poet, Amrita Pritam, who fled to this country with her two little children from Lahore was witness to the manifold tragedies during that perilous journey. She was moved to pen an ‘Ode to Waris Shah‘ in which she spoke of the fertile land of Punjab having “sprouted poisonous weeds far and near” and where “Seeds of hatred have grown high, bloodshed is everywhere / Poisoned breeze in forest turned bamboo flutes into snakes / Their venom has turned the bright and rosy Punjab all blue”

The killings would continue in the streets of Delhi.

Thirty-seven years later, the country was again witness to another enormous human tragedy. Following the assassination of Smt. Indira Gandhi, the then Prime Minister of India, on the morning of 31st October 1984 by two of her Sikh bodyguards, a communal frenzy was unleashed. For four days between 1st and 4th November of that year, all over Delhi, 2,733 Sikhs were brutally murdered. Their houses were destroyed. In the rest of the country too, thousands of Sikhs were killed.

A majority of the perpetrators of these horrific mass crimes, enjoyed political patronage and were aided by an indifferent law enforcement agency. The criminals escaped prosecution and punishment for over two decades. It took as many as ten Committees and Commissions for the investigation into the role of some of them to be entrusted in 2005 to the Central Bureau of Investigation (CBI), 21 years after the occurrence.

The present appeals arise as a result of the investigation by the CBI into the killing of five Sikhs in the Raj Nagar Part I area in Palam Colony in South West Delhi on 1st and 2nd November 1984 and the burning down of a Gurudwara in Raj Nagar Part II. Six accused, including Sajjan Kumar a Congress leader who was a Member of Parliament at that time, were sent up for trial some time in 2010. Three years later, the trial court convicted five of the accused: three of them for the offences of armed rioting and murder and two of them for the offence of armed rioting. Sajjan Kumar stood acquitted by the trial Court of all offences. The convicted accused as well as the CBI appealed to this Court…

This Court is of the view that the mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact ‘crimes against humanity’. They will continue to shock the collective conscience of society for a long time to come. While it is undeniable that it has taken over three decades to bring the accused in this case to justice, and that our criminal justice system stands severely tested in that process, it is essential, in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes. It is important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done…

Crimes against Humanity

The Court would like to note that cases of the present kind are indeed extraordinary and require a different approach to be adopted by the Courts. The mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of „crimes against humanity‟ that was acknowledged for the first time in a joint declaration by the governments of Britain, Russia and France on 28th May 1915 against the government of Turkey following the large scale killing of Armenians by the Kurds and Turks with the assistance and connivance of the Ottoman administration. The declaration termed the killings as “crimes against humanity and civilisation for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres”.

The Charter that established, after the conclusion of the Second World War, the International Military Tribunal (IMT) at Nuremberg to try Nazi criminals accused of mass extermination of Jews defined ‘crimes against humanity’ as:

“…murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

The IMT proceeded to hold many of the defendants before it guilty of that crime. The International Criminal Tribunal for the former Yugoslavia (ICTY), as well as the International Criminal Tribunal for Rwanda (ICTR), held trials for a series of offences including genocide, war crimes and crimes against humanity. The definition adopted of ‘crimes against humanity’ in Article 3 of the ICTR Statute was that they were ‘inhumane acts’ that were part of a “systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds.”

Justice S. Muralidhar (left) and Justice Vinod Goel of the Delhi high court.

Article 7 of the Rome Statute for the International Criminal Court defines ‘crimes against humanity’ as meaning “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack..” and this includes (a) Murder; (b) Extermination; (c) Enslavement and so on and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” It incorporates the criminal element of ‘murder, rape’ etc. but also a contextual element viz., the perpetrator must be aware that he is contributing to a widespread or systematic attack against civilians.

It is widely acknowledged that Prof. Hersch Lauterpacht, a renowned international law jurist… was responsible for making the offence of ‘crime against humanity’ part of the offences for which the Nazi defendants would be tried at the IMT in Nuremberg.

Another renowned scholar, a contemporary of Prof. Lauterpacht, was Prof. Raphael Lemkin whose academic efforts were instrumental in bringing about the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) which has been ratified by India. In a book titled East West Street (Weidenfeld & Nicolson, 2016) p. xxix, Prof. Philippe Sands explains the distinction between the two concepts as under:

“What is the difference between crimes against humanity and genocide?

Imagine the killing of 1000,000 people who happened to come from the same group…..Jews or Poles in the city of Lviv. For Lauterpacht, the killing of individuals, if part of a systematic plan, would be a crime against humanity. For Lemkin, the focus was genocide, the killing of the many with the intention of destroying the group of which they were a part. For a prosecutor today, the difference between the two was largely the question of establishing intent: to prove genocide, you needed to show that the act of killing was motivated by an intent to destroy the group, whereas for crimes against humanity no such intent had to be shown…. proving intent to destroy a group in whole or in part was notoriously difficult, since those involved in such killings tended not to leave a trail of helpful paperwork.”

In India, the riots in early November 1984 in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered (these are official figures) was neither the first instance of a mass crime nor, tragically, the last. The mass killings in Punjab, Delhi and elsewhere during the country‟s partition remains a collective painful memory as is the killings of innocent Sikhs in November 1984.

Pattern of mass killings

There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in U.P. in 2013 to name a few.

Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment.

Bringing such criminals to justice poses a serious challenge to our legal system. As these appeals themselves demonstrate, decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime. This loophole needs to be addressed urgently.

Challenge of dealing with crimes against humanity

Elsewhere too, the legal systems of the world are grappling with ‘crimes against humanity’. The Supreme Court of Bangladesh, in Abdul Quader Molla, considered the appeal of the government against the acquittal of the accused of mass killing of Bangladeshi citizens committed in 1971 by sympathisers of the Pakistani Army. The trial commenced in 2009, 38 years after the incident, and concluded in 2013…

The Court of Appeal in United Kingdom in Anthony Sawoniuk was dealing with the issue of framing criminal proceedings 56 years after the alleged crime. The Jury had convicted the Appellant on two counts of murder and on account of killing of Polish Jews during the Nazi era. The Appellate Court rejected the contention of the accused and refused leave to appeal before the European Court of Human Rights (ECHR). Thereafter, the ECHR, by its judgment dated 29th May 2001, upheld his conviction.

This obligation to prosecute crimes against humanity, no matter the lapse of time, has also been echoed by International Criminal Law: Critical Concepts in Law, 2015 wherein it was opined that “no amount of time can be ‘too long’ to satisfy the needs for truth and some measure of accountability, nor can come arbitrary legal time limit be set. The argument that some wounds are too old to be exposed has little moral integrity… the wounds are still there for all to see”.

The International Law Commission („ILC‟) is at present working towards a Convention on Crimes against Humanity. It has submitted the draft articles of the Convention to the UN General Assembly. It is expected that after comments are received from governments, international organisations and others, followed by a second reading of the draft articles by the ILC in 2018, the proposed convention will be adopted by the UN General Assembly in 2019 or 2020. India, in view of her experience with the issue, should be able to contribute usefully to the process.

The Court has digressed into the above brief discussion on ‘crimes against humanity’ since cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere…

Conclusions

(i) There was an abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi is apparent from the several circumstances highlighted hereinabove.

(ii) There was an utter failure to register separate FIRs with respect to the five deaths that form the subject matter of the present appeals. The failure to record any incident whatsoever in the DDR and the lack of mention of [the main prosecution witness’s] statement therein, amongst other circumstances, established the apathy of the Delhi Police and their active connivance in the brutal murders being perpetrated.

(iii) What happened in the aftermath of the assassination of the then Prime Minister was carnage of unbelievable proportions in which over 2,700 Sikhs were murdered in Delhi alone. The law and order machinery clearly broke down and it was literally a ‘free for all’ situation which persisted. The aftershocks of those atrocities are still being felt.

(iv) This was an extraordinary case where it was going to be impossible to proceed against [Sajjan Kumar] in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered they were not investigated properly and even the investigations which saw any progress were not carried to the logical end of a charge sheet actually being filed…

(xi) The mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of ‘crimes against humanity’. Cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere.

(xii) Common to the instances of mass crimes are the targeting of minorities and the attacks spearheaded by the dominant political actors facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. Decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime. This loophole needs to be addressed urgently.

(xiii) The acquittal of [Sajjan Kumar] by the trial Court is set aside. He is convicted of the offence of criminal conspiracy punishable under Section 120B read with Sections 302, 436, 295, and 153A (1) (a) and (b) IPC; for the offence punishable under Section 109 IPC of abetting the commission of the aforementioned offences; and for the offence of delivering provocative speeches instigating violence against Sikhs punishable under Section 153A (1) (a) and (b) IPC.

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